Volume 25 — Connecticut Reports

This was an action of trespass qu. cl.fr., tried before the superior court for New London county, at the term holden in January, 1856. On the trial, the plaintiff’s title to the land upon which the alleged trespasses were committed, was in question and became material.

This was a complaint preferred by a grand-juror of the town of North Stonington to a justice of the peace, for a violation of the twenty-ninth section of the statute of 1854, entitled “ An Act for the suppression of intemperance.” That part of said section material to the present case, is as follows: “ If any person shall be found intoxicated, he shall, on conviction thereof, pay a fine of twenty dollars to the treasury of the town in which the offence is committed, together…

This was an action of trespass founded on the forty-third section of the “Act for the encouragement and regulation of fisheries,” for taking oysters from ground claimed by the plaintiff to have been staked out and occupied by him pursuant to the statute.'* At the term of the superior court holden at New London, in November, 1855, the following facts were found, and the case reserved for the advice of this court.

This was a bill in chancery brought by the Norwich Gas Light Company for an injunction against the Norwich City Gas Company.

<p>This was a complaint preferred by Prentiss Williams, a grand-juror of the town of Montville, to a justice of the peace, against Samuel Mosier, for selling and keeping spirituous liquor contrary to the statute. The complaint contained two counts; the first charging the defendant with having on the 28th day of August, 1855, sold spirituous and intoxicating liquor; and the second, with keeping such liquor with intent to sell the same.</p> <p>The defendant appeared at the justice’s court, and demurred to the complaint. The justice overruled the demurrer, and found the defendant guilty on both counts, and sentenced him to pay the fines imposed by the statute for each offence. From this judgment he appealed to the superior court, held in November, 1855, at which term the complaint was tried upon the plea of not guilty.</p> <p>In support of the second count of said complaint, the prosecutor introduced as witnesses, one Richards and his wfife, who testified substantially, “ that Mosier had called on said Richards, and said that he was going to New York to purchase liquor for himself and other parties, and intended to go backwards and forwards and accommodate the neighborhood, and wished to know if they desired him to procure any for them; and that Richards asked him to buy two gallons of liquor for him. That subsequently, on the return of Mosier,. Richards sent to him and received two quarts of liquor, which he understood Mosier had bought for him ; and afterwards the accused asked him to pay for what he had taken, and further inquired when he intended to call for the remainder.”</p> <p>The defendant claimed that the evidence did not prove a sale of spirituous liquor, or a keeping with intent to sell, but an agency merely; that it; did not appear that Mosier had any liquor except the two gallons purchased for Richards, and that that was purchased bona fide by Mosier for Richards in New York. He thereupon requested the court to instruct the jury in conformity with this claim.</p> <p>The judge did not comply with this request, but charged the jury substantially as follows: “At the time when the offence charged is alleged to have been committed, contracts for the sale and purchase of spirituous liquor were lawful in the state of New York, and any person might go there and purchase such liquor, if he chose. And when so purchased, if not intended to be sold, the purchaser might bring it into this state and keep it, without violating the statute. And what a person might do himself, he might do by another as his agent. If therefore, Mosier did purchase, bona fide, as the agent of Richards, two gallons of spirituous liquor, whether the money was advanced by Richards or not, and having so purchased it, had it his possession in this state, as agent only, there could be no keeping with intent to sell, and the prisoner should be acquitted. But while this is so, the agency must be one in fact, and not in form only; a real agency, and not a cover to evade the statute. It is for the jury to find whether there was any agency at all, and if there was, whether it was a real or pretended one. No reason is assigned why, if there was an agency for the purchase of two gallons of liquor, it was not delivered by Mosier, or called for by Richards; nor does it appear that that specific quantity was purchased by itself, or that it was otherwise purchased than as part of a cask-full, which was never measured out or set apart for Richards.</p> <p>I think that in this case, where the state, in connection with the other circumstances shown, proved the delivery of spirituous liquor by Mosier to Richards and the demand of payment therefor, and an acknowledgment that he had a further quantity, which he was keeping for him, the burden of proof was thrown upon Mosier, to show that he acted in all this as the agent of Richards, and that the agency, if there was one, was one in fact, and bona fide, and not of form merely, under cover of which the statute might be evaded.”</p> <p>The jury rendered a verdict of guilty on the second count, and the defendant moved for a new trial, on the ground that the charge was erroneous, and also that the verdict was against evidence.</p>

This was a petition founded on the 29th section of the statute relating to highways and bridges, brought to the county court in October, 1853, by Samuel Story and others, praying for a new highway within the limits of the City of Norwich. The respondents appeared and moved that the cause should be erased from the docket on the ground that the court had no jurisdiction.

This was a grand-juror’s complaint to a justice of the peace for selling spirituous liquor contrary to the statute entitled “An act forthe suppression of intemperance.” * The complaint was as follows: “To Russell Wells, of the town of Groton, in New London county, a justice of the peace for said county, now holding a court'in Stonington, comes Ezra Chesebro, a grand-juror of said town, duly appointed and sworn, and complaint makes, that Richard Powers of said town, viz.: at…

This action was brought by appeal from the county court to the superior court for New London county, and was tried at the term of the latter court holden in January, 1856. The plaintiff, in his declaration, claimed to recover of the defendants the sum of $1,475, upon their policy of insurance dated November 5th, 1856, for the loss of a dwelling-house and barn.

This was a bill in equity brought by Leonard R. Bennett against Josiah H. Bennett, praying the court to set aside an award of arbitrators described in the bill, and to enjoin the defendant under a suitable penalty from using or setting up the same in any suit at law or in equity. At the term of the superior court for the county of Wind-ham, holden in November, 1855, the following facts were found, and the case reserved for the advice of this court.

This was an action on the case for the diversion of a water course. The declaration stated, substantially, that the plaintiff was the owner of a certain tract of land in the town of Voluntown, containing thirty acres, with Pachaug river flowing through it, and of a factory building and water-wheel on said land, with an artificial canal about four hundred feet long, leading from the river to the factory, and water-wheel, for the purpose of operating them.

This was an action of assumpsit against the town of Windham on the common counts only, to recover for work and labor upon a highway. The cause was tried before the superior court at the term holden in January, 1856.

Isaac Arnold, the plaintiff, brought his action of trespass on the case against Norton, the defendant, before the superior court for the counties of Middlesex and Tolland; alleging that the defendant kept a certain dog which he knew was accustomed to bite mankind, and that on the 21st day of May, 1853, the dog attacked and bit Isaac Arnold, Jr., the minor son and servant of the plaintiff, by means whereof his said son became lame, &c. The general issue was pleaded and the…

This was an action upon a promissory note, brought by the Pondville company, a joint stock corporation duly organized under the statute laws of this state, against Sylvester W. Clark. Said note was dated November 3d, 1853, and was for the sum of ninety-seven dollars and twenty-three cents, payable on demand with interest. The defendant pleaded the general issue, with notice of special matter to be given in evidence.

This was a petition for a mcmdamus, preferred by Harris Burr against Joseph W. Norton, requiring the defendant to deliver to the plaintiff, who was sheriff of the county of Middlesex, the keys and papers belonging to the common jail of said county, situated at Haddam, and the control and custody of the prisoners therein confined, and to vacate and surrender .possession of the whole of said jail, including a part of the same, occupied by the defendant as a dwelling for…

This was an action of debt, on a bond of recognizance, brought by Arthur B. Calef, as treasurer of the state of Connecticut, against Joseph B. Phelps and Timothy Loomis, demanding forty dollars.

This was an action brought by the plaintiff, as endorsee and holder of a promissory note, against Benning E. Mann and Samuel C. Savage, partners under the name of B. E. Mann & Co. The declaration alleged, substantially, “ that the said B. E. Mann & Co., at Hartford, on the 30th day of December, A. D. 1853, by their note of that date under their hands, for value received, promised, nine months after date, to pay to the order of themselves, at the Farmers and Mechanics Bank,…

This was a petition for a highway, brought by certain inhabitants of the towns of Tolland and Ellington. At the term of the county court holden in March, 1855, a decree was passed that the petition should be heard and determined by the county commissioners.

This was an action of account, brought by Milo Barnum, Leonard Richardson, and William H. Barnum, partners, doing business under the name of Barnum, Richardson and Company, against Horace Landon, Schuyler Pratt and Charles E. Botsford, as partners under the name and firm of Landon & Co. The declaration contained three counts, on the first and third of which only was a verdict rendered.

This was an appeal from the doings of the commissioners on the estate of John C. Riley deceased, tried at the term of the super or court, holden at Litchfield, in March 1856. The widow of the deceased, whose name before marriage was Sally Phelps, presented to the commissioners, for allowance, two notes, which were in the following words t On demand, and interest, I promise to pay Sally Phelps, three hundred dollars, value received.

<p>The statute which provides that “ every person who shall set fire on any land, that shall run upon the land of any other person, shall pay to the owner all the damages done hy such fire ” [Rev. Stat. tit 1, Ch. 15, § 277,] contemplates a case where a fire is set on the land of one person, and thence runs upon the land of another, and not where the fire is set upon the land injured.</p> <p>Where in an action founded upon such statute for damages occasioned to the plaintiffs’ lot of land, hy a fire which originated near a coal-pit which the defendant was burning on said lot, in pursuance of an agreement between the plaintiff and defendant that the latter should cut and burn into coal certain wood standing on said lot, the plaintiff claimed that the defendant was in the possession of that particular part of the lot on which the fire was set; and the court instructed the jury, that if the defendant was in the use of the plaintiff’s land only for the limited purpose of cutting wood and making it into coal, under a contract, and the plaintiff was in possession for all other purposes, it was not a case where the fire was set upon the land of the defendant, and thence ran upon the land of the plaintiff, and that consequently such action could not be maintained. Held, that such instruction was correct.</p>

This was a bill in chancery brought by John Sears, Charles Sears and Alfred Eggleston, of Sharon, and Nathaniel Benedict, of Salisbury, against Asahel Hotchkiss and others, to the August term of the superior court for the county of Litchfield.

This was a petition brought to the term of the county court for the county of Litchfield, holden in December, 1854, by J. H. Betts and others, praying that a highway might be laid out in the town of New Hartford, in Pine Meadow. The petition was referred to the county commissioners, who surveyed and laid out the highway, and made their report to the superior court, at its November term, 1855.

Assumpsit for work and labor. The cause was referred to an auditor, who at the term of the superior court for Litchfield county, holden in March, 1856, made his report, embracing the following facts : On the 30th and 31st of July, 1854, the plaintiff labored for the defendant by days work, for which the defendant paid the plaintiff; on the last day aforesaid, it was mutually agreed, verbally, bétween the plaintiff and defendant, that the plaintiff should labor for the…

This was an information, charging the defendant with keeping liquors, with intent to sell the same, in violation of the statute of 1854, entitled “ An Act for the suppression of intemperance.” The ninth section of that act provides “ that proof of the finding of the liquor specified in the complaint, in the possession of the accused, in any place except his private dwelling-house, or dependencies (or in such dwelling-house or dependencies, if the same be a tavern, public…

A complaint was made by a grand-juror of the town of Berlin, to a justice of the peace, charging the plaintiff in error with the crime of drunkenness. Upon the trial before the justice, the plaintiff was found guilty, and sentenced to pay a fine of twenty dollars and the costs of prosecution. From that judgment he moved an appeal to the superior court, which appeal was allowed by the justice.

This was an action brought by the administrator on the estate of Nathaniel Curtiss, deceased, upon a policy of insurance for three thousand dollars, claimed to have been made upon the life of said Curtiss by the Connecticut Mutual Life Insurance Company. The defendants pleaded the general issue, with notice that they should offer evidence that the insurance premium had never been paid, and the policy never executed or delivered.

This was a bill in chancery, brought by thirty-nine persons, residents and tax-payers in the Centre District, West School Society, in the town of Suffield, alledging that the district had imposed a tax of seventy-five cents on the dollar, on the levy of 1854, for the purpose of defraying the expense of building a school-house, fence, well and for other necessary expenses and liabilities of the district; that the votes of the district in imposing the tax and directing the…

This was an appeal from a decree of the court of probate for the district of Hartford, approving of the last will and testament of Edward Galagher. The cause by consent of parties, was heard before the Hon. Wm. L. Storrs, as a judge of the superior court, who made a special finding of the facts, and reserved the case for the advice of this court.

This was a bill in chancery brought by James Dodd and thirty-two others in behalf of themselves and certain other persons named in a schedule annexed to the bill against the mayor aldermen common council and freemen of the city of Hartford, praying for an injunction restraining the defendants from enforcing the collection of certain assessments for the expenses of constructing a sewer within said city.

This was an action of ejectment for a parcel of land situated in the town of Canton, and was tried before the superior court for Hartford county, at the October term, 1855. On the trial, upon the plea of the general issue, the plaintiffs claimed title to the demanded premises under a deed dated November 21st, 1834.

<p>A condition in a deed that “ in case any ardent spirits, cordials or wines shall be kept or sdld on any part of the premises, or in any building erected or to be erected thereon, the deed shall become void and of no effect,” is valid in law.</p> <p>And in such case, the open and public sale of such articles by a tenant of the grantee on the premises, with the assent of the grantee or with his knowledge and without reasonable diligence on his part to prevent it, will work a forfeiture of the estate.</p> <p>But an authorized sale by a third person, where the grantee is chargeable with no fault or negligence, will not work such forfeiture.</p> <p>And the question of the grantee’s knowledge of such sales, and of his negligence or diligence in relation thereto, is wholly one of fact, on which any evidence ordinarily applicable to such a question is admissible.</p> <p>Where, in an action of disseisin brought by the grantor against the grantee, to recover premisesheld under a deed containing such a condition, and claimed to be forfeited for a violation thereof, it appeared that the person who made such prohibited sales, held under a lease, from the defendant, and that the lease contained an agreement on the part of the lessee that he would not sell any article, the sale of which would injure the defendant’s title, but contained no condition that the lease should be rendered void by such sale, and it further appeared that the defendant as soon as he discovered such sales* had in some manner procured the tenant’s removal from the premises ; it was held, that the defendant was not chargeable by the plaintiffs with negligence for making a lease without such condition, inasmuch as the plaintiffs had suffered no injury thereby.</p>

This was an action of trespass qu. cl.fr., brought originally to the superior court; to which the general issue was pleaded. The cause was tried at Hartford, at the term holden in December 1855, when the jury returned a verdict in favor of the plaintiff, for five dollars damages and her costs.

<p>A representation which estops the party making it from denying its truth, must not only have misled the party to whom it was made, but have been intended so to mislead him ; or at least there must have been such culpable negligence or carelessness-as may be regarded as amounting to an intention to mislead.</p> <p>And the same is true, where a party by his silence, which is only one mode of making a representation, has misled another, as to the matter not communicated.</p> <p>To make the silence of a party operate as an estoppel, the circumstances must be such as to render it his duty to speak.</p> <p>Therefore where W. who was building a house for E. under a written contract, assigned the contract while the house was unfinished to T. to secure an indebtedness to him and also assigned his lien on the premises, at the same time stating to T. that there would be $1,500 due him from E. on the contract when the house was completed, and T. at once called on E. and enquired if the statement was true, informing him of the assignment of the contract and of his proposal to complete the house, to which E. replied that if T. took the contract to finish he must do so at his own risk, and entirely upon W’s representations, and declined to inform him as to the state of his account with W.; upon which T. proceeded to complete said house at a considerable outlay of his own funds, E, being present very frequently while the work was going on, but giving him no further information on the subject of his accounts with W., it also appearing that E. supposed he was somewhat indebted to W. and had been informed thatT. had security for the cost of completing the house ; it was held, on a bill in equity brought by T. as the assignee of W. against E, and others for a foreclosure upon said lien, that E. was not estopped from claiming that W. had been overpaid by him before the assignment of the contract to T. and that nothing was due under the contract. [Waite, Chief Justice, dissenting.]</p>

This was an action on the case, brought by the Connecticut Mutual Life Insurance Company, against the New York and New Haven Railroad Company, demanding three thousand dollars damages. The declaration embraced three counts.

<p>The acts of an officer de facto, performed colore officii, are valid so far as the public or third persons having an interest in such acts are concerned, and their validity can not be indirectly called in question in a suit to which he is not a party.</p> <p>Where spirituous liquors, alleged in a complaint to have been kept by the defendants in violation of the statute, entitled “ an act for the suppression of intemperance,” were seized under a warrant directed to a constable and the defendant pleaded in bar, that the person by whom the warrant was served, although chosen a constable, had never executed a bond for the faithful discharge of the duties of his office; it was held, that the plea was insufficient, and that the matter would also have been insufficient if pleaded in abatement.</p> <p>It is not necessary to the validity of a search warrant issued under the provisions of said act, that it should limit the service to the day time.</p> <p>Where a complaint alleged, that a ceriain quantity of spirituous liquors, to wit, ten gallons of brandy, ten gallons of rum &c., at a certain place, was kept by B. and intended by him to be sold in violation of said act, and by virtue of the warrant which recited the complaint, the officer seized a hogshead containing thirty gallons of rum, and a barrel containing eighteen gallons of rum; it was held, that the specification of the kinds and quantities of the liquors under the videlicet was intendedjas a description of them, and not to limit their quantities, and that the authority of the officer was not limited to the quantity specified in the complaint.</p> <p>Where, after a seizure of the liquor under the provisions of the statute, a citation was issued by the magistrate, to the defendant andko all others interested, to appear and show cause why the liquor should not be forfeited, which citation, after setting out briefly the substance of the complaint, the warrant and the seizure, stated, that it was alleged in the complaint that the liquor in question was owned and kept by “ some person ” without specifying any person by name, and the defendant appeared before the justice, and was heard, and afterwards appealed the cause to the superior court, and there pleaded in bar to the suit; it was held, 1. That by the service of such citation the defendant received reasonable notice to appear and be heard. 2. That he could not at that stage of the case avail himself of any defect in the notice;</p> <p>The provisions of said act, relating to proceedings in rem to effect the forfeiture and destruction of spirituous liquors, kept for illegal sale, are constitutional and valid.</p> <p>The provision of said act, that the justice, if he shall find the liquor was kept in violation of said act, shall render judgment that the liquor and the vessels which contained it be forfeited, is not, by giving to the justice jurisdiction over property to an unlimited amount, repugnant to the constitution of this state, as impairing the right of trial by jury, inasmuch as the right of appeal is allowed to the claimant in every case.</p> <p>It is no valid objection to the constitutionality of said act, that the defendant, before an appeal is allowed, is required by it to give bond to prosecute his appeal to effect, in such amount as the justice may order, and that the justice has the power to prevent an appeal by requiring a bond of an exorbitant amount, inasmuch as it is not to be supposed that any such abuse of authority will be practiced, especially as the bond is required only to secure the payment of costs.</p> <p>Nor is the provision of said act, that the liquor forfeited shall be delivered to the agent of the town to be destroyed or sold for the benefit of the town, a violation of the constitutional provision, that “ the property of no person shall be taken for public use without just compensation therefor.”</p> <p>The provisions of said act with r.egard to the exclusive sale of liquors by the towns, through agents appointed for that purpose, are not invalid, as giving to the towns a monopoly of such sale.</p>

<p>The ninth section of the act for the suppression of intemperance, which provides that no person under the penalties therein prescribed, shall own or keep any spirituous or intoxicating liquor with intent to sell the same in violation of that act, is not invalid, as conflicting with any provision of the constitution of the United States, or of the constitution of this state, or as opposed to natural right and the fundamental principles of civil liberty.</p> <p>KTor is the validity of said ninth section affected by the possible invalidity of the eleventh section of said act, which provides that all liquor, intended by the owner or keeper thereof to be sold in violation of said act, shall, with the vessels in which it is contained, be forfeited to the town wherein it is kept; for the former section has not that dependence on the latter which is necessary to such a result.</p> <p>The rule in such case is, that the unconstitutionality of one part of a statute, will not render another part of it invalid, unless the parts which are respectively constitutional and unconstitutional, are so mutually connected with, and dependent on each other, as to warrant a belief that the legislature intended them as a whole, and would not have enacted the part which is constitutional independently.</p> <p>But said eleventh section is also constitutional and valid.</p>

<p>Where household furniture is mortgaged, and possession thereof retained by the mortgagor, under the provisions of the statute, [Rev. Stat., Title 20, See. 4,] which provides, that “ whenever the occupant of any dwelling-house, having a family, shall mortgage the household furniture used by him in housekeeping, by a deed in which such furniture shall be particularly described, and which shall be executed, acknowledged, and recorded, in all respects as mortgages of lands are required to be, such mortgage shall be good and effectual, although the mortgagor shall retain possession of such mortgaged property; ” such household furniture does not lose the immunity conferred upon it by the statute, in exempting it in such case from the necessity of a change of possession, by reason of the fact that, in addition to its use by the family of the mortgagor, it also constitutes the furniture of a hotel kept by the mortgagor, and in 'which he resides with his family.</p> <p>A mortgage of household furniture purported to convey a specified number of different kinds of furniture, not otherwise described than by a general designation and as contained in the hotel of the mortgagor, there being at the time a greater number of some of the articles and a less number of others, owned by the mortgagor, and contained in his hotel: — Held, that the mortgage was good as to those articles that were less in number than those described in the mortgage, and that, as to the others, it was void for uncertainty.</p> <p>Where a mortgage was executed on the 21st day of July, to secure the mortgagee for an endorsement made for the accommodation of the mortgagor on the 13th day of July, and in compliance with a promise of the mortgagor when he requested such endorsement, that he would as soon as he conveniently could thereafter, make such mortgage, but was not acknowledged and delivered until the 31st day of July, and was not left for record until the Sth day of August, and within sixty days after said 21st day of July, the mortgagor went into insolvency; it having been found by the court that, although the mortgagor was embarrassed and insolvent at the time, yet in procuring said note to be discounted, and in executing said mortgage, he did not act in view of insolvency, and that the éxeeution thereof was not delayed, nor the same withheld from record, for the purpose of concealing the existence thereof, or for any other fraudulent purpose ; it was held, that such mortgage was not invalidated by any of the provisions of the act " for the relief of insolvent debtors and the more equal distribution of their effects among their creditors.”</p>

<p>This was an action for fraud. The plaintiff in his declaration alledged that he and. the defendant entered into an agreement in writing, for an exchange of certain lands situated in the state of New York, and that the defendant, in carrying said agreement into effect, falsely and fraudulently represented and affirmed to the plaintiff, that the lands described in the agreement as belonging to him, were held in trust for him by his son John B. Atwood, who was the owner thereof in fee simple, and by his deed could give the plaintiff a good title to the same, and that the plaintiff relying upon the truth of those representations, was induced to accept the deed of the son, purporting to convey to the plaintiff the defendant’s lands, in fee simple, with the usual covenants ; and that at the request of the defendant, he, the plaintiff, conveyed to the said John B. Atwood the plaintiff’s lands with the usual covenants.</p> <p>The plaintiff further averred that a large portion of the lands described in the deed of John B. Atwood, were not owned by him, and some of them had previously been sold for taxes ; that at the time of executing said deed he was destitute of property, and was, and still remained wholly irresponsible on his covenants; all which was well known to the defendant.</p> <p>Upon the trial of the case, before the superior court at the March term 1856, the defendant claimed that the lands conveyed by his son to the plaintiff, were owned by the son, and not holden in trust, and that in making the agreement with the plaintiff, he acted as the agent of his son. And as well by way of defense to the action, as in reduction of damages, he offered evidence to prove that a part of the lands described in the plaintiff’s deed to John B. Atwood, were not owned by the plaintiff at the time of the execution of the deed. But it was not claimed that the plaintiff was insolvent, or not fully responsible for any damages that the said John B. Atwood might recover against him on the covenants in the deed, or otherwise, by reason of any alleged misrepresentations or deficiency in the quantity of land conveyed. The plaintiff thereupon objected to the admission of the evidence, and the court excluded it.</p> <p>The plaintiff for the purpose of showing that John B. Atwood had no title to a part of the lands embraced in his deed to the plaintiff, offered in evidence a duly authenticated copy of a deed from the comptroller of the state of New York, purporting to have been given upon the sale of those lands for taxes, accompanied with the revised statutes of that state relating to such conveyances, in which it was provided that every conveyance of land sold for taxes, executed by the comptroller, shall be presumptive evidence that he had authority to sell and convey the land described in it, for arrears of taxes charged therein, and that all proceedings, things and notices, required by law to be had, done, or given, prior to the execution of the conveyance by the comptroller, have been had, done and given, as required by law, but such presumption may be rebutted by any legal evidence, &c.</p> <p>To the introduction of the deed in evidence, the defendant objected, on the ground that the plaintiff must show that all the legal steps had been taken which authorized the conveyance, but offered no evidence to show that such steps had not been taken. The court overruled the objection and admitted the deed as presumptive evidence of the sale, and the regularity of the prior proceedings.</p> <p>It was not claimed by the plaintiff that he had caused any - search to be made of the county records in relation to the title of the lands described in the deed to him, but had relied upon the representations made by the defendant.</p> <p>The agreement for the exchange of lands was made in the town of Olive, in the county of Ulster, in which the lands were situated, and fourteen miles from Kingston, where the records of that county were kept. One witness, an attorney at law, testified that it had not been the practice in that county for a person to purchase lands, without causing a search of the county records to be made, either by his attorney or the county clerk. Two other witnesses testified, that it was very unusual for persons residing in the town of Olive, or elsewhere out of the town of Kingston, upon taking a conveyance with warranty, to incur the expense of a search of the land records of the county ; that such searches were very expensive and attended with much delay, and in that case, the expense would have been large, and the time occupied from two to six days. One of them further testified, that, at the time of the exchange of deeds, the defendant expressed a desire to have the business transacted without delay, as he had barely time to reach Kingston in season for the boat, on his return to Connecticut.</p> <p>The defendant thereupon insisted that the plaintiff had been culpably negligent, and was not entitled to recover, by reason of any defect of title, which might have been discovered on such search, whatever might have been the fraudulent representations or concealments on the part of the defendant, and asked the court so to charge the jury.</p> <p>Upon this part of the case, the court instructed them, that it was the duty of the plaintiff to have exercised ordinary care and caution to ascertain the title of the land he was about to purchase, and if he did not, he was in fault. But that it was a question of fact, for their determination from all the evidence before them, whether there was any want of care, or whether there had been any culpable negligence on the part of the plaintiff, in omitting under all the circumstances, to incur the expense and delay of a search, and in relying on the representations made by the defendant, and unless they should so find, their verdict must be for the plaintiff, if they should find the other issues in his favor, otherwise for the defendant.</p> <p>The jury having returned a verdict in favor of the plaintiff, the defendant moved for a new trial, and the questions of law were reserved for the advice of this court.</p>

<p>Where the declaration in an action of trespass or trespass on the case for an injury to laftd, alleges that the plaintiff was well seized and possessed of the land, as a good indefeasible estate in fee simple, it is sufficient on the trial for the plaintiff to show a lawful possession at the time when the injury complained of was committed.</p> <p>And a judgment for the plaintiff in such a case, upon the plea of the general issue, is conclusive evidence between the parties and their privies, only of such title as the plaintiff was bound to prove.</p> <p>Therefore where, in an action on the ease involving the question of the plaintiff’s right to the uninterrupted flow of a stream to his mill, as against a riparian proprietor above, who was charged with obstructing the same, the plaintiff offered in evidence a judgment in favor of a party from whom he derived title, against a party from whom the defendant derived title, in an action brought to recover damages for a like obstruction, together with parol testimony that the suit was brought for the purpose of establishing the same right now claimed by the plaintiff; and it appeared that the declaration in the former suit, alleged that the plaintiff in that suit owned and possessed said mill with its appurtenances, and that he and those under whom he claimed, had for more than thirty-eight years enjoyed the uninterrupted use of the water of the river, flowing in its natural course and quantity, through and from the close in the possession of the defendant to said mill, and that the defendant did wrongfully erect and continue a certain dam across said stream within his said close, and thereby obstruct the passage of the water to said mill; and it also appeared that the only plea in said case was that of the general issue; said judgment being offered in evidence by the plaintiff as conclusive proof of the existence at the time, in the plaintiff therein, of the prescriptive title alleged in said declaration; it was held, that it was not necessary to the recovery in said suit that the plaintiff should have proved any other than a possessory title, and that consequently such judgment was not conclusive evidence of the title alleged in the declaration on which it was founded.</p> <p>Where a riparian proprietor has used a water privilege for more than fifteen —years, but in such a manner as to do other riparian proprietors no injury and give them no right to interfere, the proprietor so using the same acquires thereby no rights against such other proprietors.</p> <p>A proprietor of land through which a stream flows, has a right to detain the /water for his reasonable use, for mechanical and other purposes; and the question of reasonable use is one for the jury.</p> <p>And where, in submitting the question of reasonable use in such a case to the jury, the court had instructed them, that they were not to look alone at what would be a reasonable use at one mill, if there were no others on the stream, but that they were to take into consideration the wants of the other mills, and from all the circumstances say whether the use in the particular instance was reasonable; it was held, that the question was properly submitted.</p>

<p>Where the grantor of a tract of land, reserved in his deed the right within a limited time to open a highway of a certain width, from the north line of said land to certain land on the south side, with no other restriction as to the location than that it was not to be laid further west than certain designated points, the same being described in another part of said reservation as “ a highway across said land,” and within the time limited, the grantor located said highway over the east end of said tract, and by the side of another highway on which the tract conveyed was bounded, but within the limits prescribed in the reservation, which location was claimed by the grantee to be different from that intended by the parties upon a fair construction of the terms of said reservation; it was held, that the express limitation of certain points on the west beyond which the highway was not to be located, and the absence of any such limitation on the east, indicated that the parties did not intend any restriction as to the eastern portion of the tract, and that, there being nothing in the terms of the reservation to prohibit the location made, the grantor had the right to make it.</p> <p>Where, in an action of trespass involving the right of such grantor to locate said highway in the manner above described, the plaintiff requested the court to charge the jury, that said grantor was bound to exercise his right of locating a highway under said reservation, in a reasonable manner, according to the views of the jury, in view of all the circumstances and the situation of the premises, and as shown not only by the terms of said reservation but by extrinsic evidence; and the court instructed the jury that said grantor had full right, under said reservation, to exercise his own judgment fairly, and to open a highway over said premises, within the given monuments, wherever he judged best, provided he did not act wantonly and oppressively in so doing; it was held, that the charge conceded to the plaintiff all that he had any right to claim.</p> <p>Where, previously to the location in question, said grantee had elected to locate the highway authorized by said reservation, in a different place, which location was not in accordance with the terms of said reservation, and which highway so located the grantor was prohibited from opening, by an injunction issued upon the application of the grantee; it was held, that the right to elect as to the location of said highway, was not thereby exhausted.</p>

This was a petition to the superior court for the county of Fairfield, praying for the correction of the record of a judgment, in an action at law, between the same parties, rendered at a preceding term; and also for an injunction against the use of such record to defeat an action of ejectment then pending.

<p>The public ia the owner in fee of the flats adjoining an arm of the sea, over which the tide ebbs and flows, up to high-water mark, such title being vested in the public for purposes of navigation and commerce.</p> <p>The owner of upland adjoining such flats is entitled, by virtue of such ownership, to the exclusive right of wharfing out over such flats in front of his upland to the channel of the arm of the sea, subject to the rights of the public. This right of wharfage is not, however, an inseparable incident of the title to the upland, so that a conveyance of the upland necessarily conveys the right of wharfage, or so that the right of wharfage may not be conveyed without the upland.</p> <p>And the question whether such right is conveyed by a deed of such upland, depends on the intention of the parties, to be ascertained from the language of the deed.</p> <p>Therefore, where a warranty deed of a piece of such upland, extending to such flats, described the land conveyed as lying within certain lines therein defined, which were to extend so far as to enclose twenty-five rods of land, and did not bound said land on any specified object, and contained also a release of a specified portion of the flats adjoining ; it was held, that the rights of the grantor in the flats not falling within said lines and not specifically described in said deed, did not pass thereby.</p> <p>As to the rule by which the rights of wharfage are to be determined among different owners of the upland, in the case of a cove, or indentation of the shore. Qu.</p>

<p>A. and B. had severally attached certain personal.property of C., their common debtor, the attachment of A. having precedence, and both had obtained judgment against C. in the suits so brought, the property being, however, insufficient to satisfy either judgment. On a petition in chancery brought by B. against A, praying that A. be enjoined against levying his execution on the property, it having been found by the court, that B’s judgment was based on a just and legal claim, but that A’s judgment, though nominally based on a payment of money for C., was yet founded wholly on a liability of A. to a bank, as maker of a note endorsed by O. and by one F., and which C. had agreed but had failed to pay, and that the object of A. in bringing the suit, was to secure to himself and to F. an indemnity for suoh liability; it was held, that the judgment of A. being founded on no legal indebtedness, his lien ought to be postponed to that of B.; and that, as the property attached was insufficient to pay B’s judgment, the injunction prayed for ought to be granted. °</p> <p>The statute of 1846 (B,ev. Stat., tit. i., sec. 59,) which provides, that creditors of a debtor whose property has been attached, may appear in the suit, and contest the same, was not intended to affect any previously existing rights of such creditors, but to furnish an additional remedy.</p> <p>And the legal remedy thus furnished, constitutes no objection to equitable relief.</p>

This was an action on the case, brought under the provisions of the 283d section of the statute with regard to. civil actions, which provides for such an action against a debtor “ who shall refuse to pay any debt admitted by him to be due, or established by a valid judgment, while having moneys or estate not exempt from execution sufficient to pay said debt, concealed, or withheld by him, so that they can not be taken by legal process.” The declaration, after alleging that…

This was an action of trover, tried before the superior court for Fairfield county, at the March term, 1856. The court found the facts, and reserved the case for the advice of this court.

This was an action of assumpsit, brought to recover the freight and primage on a quantity of lumber, transported by the plaintiff for the defendant from New York to San Francisco. The declaration contained one count setting forth specially the contract between the parties and the plaintiff’s proceedings under it, and two counts of a more general character. It is given in full, in the report of a former trial of the same case before this court. 21 Conn. R., 157.

This was an appeal by Randall Cook and Eliza his wife, from decrees of the court of probate for the district of Litchfield, ordering a distribution of the estate of Abel Catlin, and accepting a distribution made under such order. The facts were found by the superior court at its session for the county of Litchfield, in September, 1856, and the case reserved for the advice of this court.

This was an action of book debt, against Nathaniel B. Stevens and Augustus P. Lawrence, described in the writ as partners under the name of N. B. Stevens & Company. The suit was brought to recover the price of certain castings ordered by the defendant Stevens, and charged by the plaintiff to the firm of N. B. Stevens & Company, for whom he supposed they were ordered.

This was an action of assumpsit, tried upon the general issue, closed to the court, at the term of the superior court for the county of… Held: that the defendant was not precluded, by the parol character of the contract, from showing that the plaintiff’s labor was performed under it; and that the contract being entire, and not having been performed by the plaintiff, he could not recover; and rendered judgment for the defendant. , The plaintiff moved for a new trial, upon…

This was a writ of error, brought to obtain a reversal of a decree of the superior court, made upon a petition of the town of Killingly against the Norwich and Worcester railroad company.

This was an action of assumpsit, brought originally before a justice of the peace, and appealed by the defendants to the superior court, where it was tried on the general issue closed to the jury, at the session of said court in the county of Windham, holden in August, 1856. The plaintiff claimed to recover for his services as an assessor of the town of Woodstock for the year 1854.

This was an action of debt, on a bond given to the plaintiff as sheriff of the county of Tolland, by the defendants, in the sum of twelve hundred dollars, the condition of which was that John P. Cummings, one of the defendants, then imprisoned in the county jail of said county, on an execution in favor of one Earl Cummings, should remain a faithful prisoner within the limits of the liberties of said jail until lawfully discharged.

This was an action of general assumpsit, brought to recover of the city of Bridgeport a sum of money received by the city from a sale of the plaintiff’s property, under a warrant of the mayor, for the collection of an assessment of benefits in widening a street, tried on an issue closed to the court at the term of the superior court for the county of Fairfield, holden in March, 1856.

This was a writ of error brought to the superior court for the county of Fairfield, to reverse a judgment of the city court of the city of Bridgeport, in a proceeding of scire facias brought by the defendant in error against the plaintiff in error.

This was an action of assumpsit, brought by the plaintiffs as endorsees, against the defendant as acceptor, of three bills of exchange, drawn on him by Nathaniel Greene, agent, and endorsed by John F. Greene. The declaration contained three special counts, and a general count embracing a claim for money had and received. The case was tried to the jury on the general issue, at the term of the superior court holden in the county of Fairfield, in October, 1856.

This was a process of foreign attachment against the Farmers and Citizens’ bank of Long Island as defendants, and Thatcher S. Payne as garnishee, brought to the superior court for the county of Fairfield, at its session in December, 1856.

Assumpsit. The plaintiff, in his declaration, alleged that before the first day of September, A. D. 1846, one Joseph Meeker, then of Westport, in this state, had died intestate, leaving certain estate on which no administiation had been taken on said 1st day of September; and that the defendants, desiring that the plaintiff should become administrator thereof, did then specially request him to become such administrator by legal appointment, and proceed to the settlement of…

This was a petition in chancery, for the reformation of a contract of insurance, and praying for a decree that the respondents pay the sum of $>5,000, the amount of the insurance. The facts were found by a committee. The mistake in the contract was claimed to be in the answer to the 16th interrogatory of the application of the petitioners for insurance. The interrogatory was, Is a watch kept upon the premises during the night ? Is there a good watch-clock ?

Trover for a horse; tried to the jury on the general issue at the superior court in Fairfield county, December term, 1856.

Trover: brought to recover the value of a quantity of groceries, sold by the plaintiff to one William E. Roberts, in December, 1853, and now in the hands of the defendant. The plaintiff claimed to have rescinded the sale for fraud. The case was tried to the jury on the general issue, at the term of the superior court, holden in Fairfield county, in October, 1856.

Writ of error from a judgment rendered by the superior court in Fairfield county, at its October term, 1853. The original action was assumpsit, in which the plaintiff recovered a verdict of $745.85. The defendants filed a motion for a new trial, which was granted, unless the plaintiif should remit the sum of $117, improperly included in the verdict.

Action on the case for the escape of one Ruperts from the custody of the defendant, a constable of the town of Bridgeport, who had attached his body on mesne process. The case was tried to the jury on the general issue, with notice, before the superior court in Fairfield county, December term, 1856.

This was an action on the case, brought by Andrew Taylor and Polly his wife against Harmon Knapp.

Trespass, qu. cl. fr., tried before the superior court for Fairfield county, October term, 1856. The defendants justified under certain proceedings, by which the land had been taken for the purposes of their railroad, and which they claimed were in all respects in accordance with the requirements of their charter. The plaintiff claimed that the proceedings v/ere irregular and defective, and gave the defendants no right to enter upon and take the land.

This was a petition in chancery, brought to the superior court for the county of Fairfield, to obtain the correction of a deed, and an injunction against the prosecution of an action at law. The respondent, on the 31st day of July, 1851, had sold to the petitioner certain real estate in the town of Stamford, known as the Rippowam Foundery.

Assumpsit. The declaration contained a special count for the non-performance of a contract by the defendant to build a school-house for the plaintiffs, and the money counts. The defendant, on the 7th day of December, 1853, made a contract in writing with the plaintiffs to build the schoolhouse for the sum of $2,469, and to complete the same by the first Monday of May, 1854; a part of the price to be paid by installments as the work progressed.

This was a complaint under the 8th section of the act for the suppression of intemperance, brought by three electors of the town of Seymour, to a justice of the peace of said town. The defendant appeared and pleaded sundry matters in abatement, on which an issue was closed and judgment rendered that the defendant answer* over to the complaint.

This was an action on a policy of insurance issued by the defendants on the life of Josiah Bouton, for the benefit of the plaintiff his wife.

<p>The qualities of an object in dispute, may be shown by a comparison thereof with the known qualities of some object not in dispute; and evidence directed to such a comparison is not inadmissible as irrelevant or as tending to raise collateral issues.</p> <p>A witness having testified as to the condition at a former time of a certain ience, its condition at such former time being the subject of controversy, was asked on cross-examination as to the present condition of a certain neighboring fence, for the purpose of instituting a comparison between the present condition of the one and the former condition of the other. Held, that such inquiry was within the foregoing rule and proper.</p> <p>A record by a town clerk of the proceedings of a town meeting in enacting a by-law, authorized by statute to be enacted by towns at meetings specially warned for that purpose, stating that, at a special meeting of the inhabitants of the town, legally warned and held for the purpose of making the by-law in question, it was voted &c., is prima facie evidence that such meeting was specially warned for the purpose of making such by-law.</p>

This was an action of book debt originally brought before a justice of the peace for the county of New Haven. The writ was served by one Charles R. Wheadon as con» stable of the town of New Haven.

This was an action of trespass de bonis asportatis, brought against Wooster Ives and Frederick W. Bartholomew.

This was an action of assumpsit by Belina Clark against Noah Merriam as guarantor of the following note. “ West Meriden, April 2, 1853. “ $300. One day after date I promise to pay to the order of Belina Clark, three hundred dollars at my store in cash, value received.

Action on the case for a nuisance, tried to the jury oh the general issue at the term of the superior court holden in the county of New Haven, in December, 1856. The plaintiffs owned and conducted an extensive manufacturing establishment in the town of Waterbury, having on their premises a large well which supplied water for a steam engine, and for the use of their workmen.

This was a petition to the superior court for the county of Windham, at its November term, 1856, for relief from the doings of the selectmen of the town of Windham in laying out a certain highway, brought under the provisions of the 22d section of the act concerning highways and bridges. [Rev. Stat., tit. 24.] The statute referred to provides that any party making such application for relief shall “ cause said selectmen to be duly cited, to show reason, if any they have, why…

Assumpsit ; brought by the plaintiff as endorsee of the following note: $1,000. New York, 8th March, 1854. Sixty days after date I promise to pay to the order of William Gilchrist, one thousand dollars at the American Exchange Bank, value received.